[Federal Register Volume 82, Number 108 (Wednesday, June 7, 2017)]
[Rules and Regulations]
[Pages 26360-26376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11805]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 160830798-7517-02]
RIN 0648-BG32


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Waterfront Construction

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS, upon request from the U.S. Navy (Navy), issues these 
regulations pursuant to the Marine Mammal Protection Act (MMPA) to 
govern the taking of marine mammals incidental to conducting waterfront 
construction at Naval Submarine Base Kings Bay, GA, over the course of 
five years (2017-2022). These regulations, which allow for the issuance 
of Letters of Authorization (LOA) for the incidental take of marine 
mammals during the described activities and specified timeframes, 
prescribe the permissible methods of taking and other means of 
effecting the least practicable adverse impact on marine mammal species 
or stocks and their habitat, and establish requirements pertaining to 
the monitoring and reporting of such taking.

DATES: Effective from July 12, 2017, through July 11, 2022.

ADDRESSES: A copy of Navy's application and supporting documents, as 
well as a list of the references cited in this document, may be 
obtained online at: www.nmfs.noaa.gov/pr/

[[Page 26361]]

permits/incidental/construction.htm. In case of problems accessing 
these documents, please call the contact listed below (see FOR FURTHER 
INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory Action

    These regulations, issued under the authority of the MMPA (16 
U.S.C. 1361 et seq.), establish a framework for authorizing the take of 
marine mammals incidental to the Navy's waterfront construction 
activities at Naval Submarine Base Kings Bay, GA (NSB Kings Bay). The 
Navy plans to repair (including direct repairs and repairs by component 
replacement) in-water structures at NSB Kings Bay, construct a new 
Transit Protection System Operational Support Facility, and extend the 
existing Layberth Pier in order to (1) address critical damage and 
mission and safety requirements, (2) limit further deterioration and 
increase the useful life of the structures, and (3) upgrade 
infrastructure to meet requirements of new submarine technology. 
Construction will include use of impact and vibratory pile driving, 
including installation and removal of steel, concrete, composite, and 
timber piles.
    We received an application from the Navy requesting five-year 
regulations and authorization to take bottlenose dolphins. Take is 
anticipated to occur by Level B harassment incidental to impact and 
vibratory pile installation and removal. The regulations are valid from 
2017 to 2022. Please see the ``Background'' section below for 
definitions of harassment.

Legal Authority for the Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region for up to five years 
if, after notice and public comment, the agency makes certain findings 
and issues regulations that set forth permissible methods of taking 
pursuant to that activity, as well as monitoring and reporting 
requirements. Section 101(a)(5)(A) of the MMPA and the implementing 
regulations at 50 CFR part 216, subpart I provide the legal basis for 
issuing this final rule containing five-year regulations, and for any 
subsequent LOAs. As directed by this legal authority, this final rule 
contains mitigation, monitoring, and reporting requirements.

Summary of Major Provisions Within the Final Rule

    Following is a summary of the major provisions of this final rule 
regarding Navy waterfront construction activities. We have determined 
that the Navy's adherence to the planned mitigation, monitoring, and 
reporting measures listed below will achieve the least practicable 
adverse impact on the affected marine mammals. These measures include:
     Required monitoring of the waterfront construction areas 
to detect the presence of marine mammals before beginning construction 
activities.
     Shutdown of construction activities under certain 
circumstances to avoid injury of marine mammals.
     Soft start for impact pile driving to allow marine mammals 
the opportunity to leave the area prior to beginning impact pile 
driving at full power.

Background

    Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1371 
(a)(5)(A) and (D)) direct the Secretary of Commerce to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    On January 19, 2016, we received an adequate and complete request 
from the Navy for authorization to take marine mammals incidental to 
waterfront construction activities. On February 17, 2016 (81 FR 8048), 
we published a notice of receipt of Navy's application in the Federal 
Register, requesting comments and information related to the request 
for 30 days. We did not receive any comments. The Navy provided a 
revised final draft incorporating minor revisions on March 17, 2017.
    The Navy plans to repair in-water structures at NSB Kings Bay, as 
well as to construct new facilities and modify existing facilities. 
These repairs, upgrades, and new construction would include use of 
impact and vibratory pile driving, including installation and removal 
of steel, concrete, composite, and timber piles. Hereafter (unless 
otherwise specified or detailed), we use the term ``pile driving'' to 
refer to both pile installation and pile removal. The use of both 
vibratory and impact pile driving is expected to produce underwater 
sound at levels that have the potential to result in behavioral 
harassment of marine mammals. Only the bottlenose dolphin (Tursiops 
truncatus truncatus) is expected to be present. The regulations are 
valid for five years, from July 12, 2017, through July 11, 2022.

Description of the Specified Activity

    Additional detail regarding the specified activity was provided in 
our Federal Register notice of proposed rulemaking (82 FR 684; January 
3, 2017); please see that notice or the Navy's application for more 
information.

Overview

    NSB Kings Bay is the Navy's east coast home port for ballistic 
missile nuclear submarines supporting the Trident II (D-5) missile. NSB 
Kings Bay manages, maintains, and operates Trident ballistic missile 
(SSBN) and guided missile (SSGN) submarines, Trident II D-5 and 
Tomahawk Land Attack Missiles and systems, and infrastructure and 
quality of life facilities and programs. In 2010, the Navy found that 
conditions of water-

[[Page 26362]]

based support facilities varied widely from good to seriously 
deteriorated. Continuous monitoring of these conditions by Navy at NSB 
Kings Bay has confirmed the advanced deterioration and critical nature 
of some issues that pose operational and safety risks. Additionally, 
other areas of initial deterioration were identified which require 
remedy in order to maintain the useful life of existing structures. 
Damage observed includes deteriorated concrete piles, pile caps, and 
deck components (cracked, spalled, delaminated, exposed/corroded 
internal reinforcing steel structures); marine pest (marine wood borer) 
damage on wooden piles; broken or unmaintained mooring fittings; and 
corrosion on steel piles and pile caps. In some cases, it is more cost 
effective to demolish older structures that are deteriorated and not 
well configured to fit existing and upcoming assets and replace them 
with new structures that are specifically designed to meet new mission 
requirements.
    To ensure the Navy can continue its mission of supporting the Fleet 
Ballistic Missile System and Trident Submarine Program, the Navy plans 
to repair (including direct repairs and repairs by component 
replacement) in-water structures at NSB Kings Bay, construct a new 
Transit Protection System Operational Support Facility, and extend the 
existing Layberth Pier. These repairs, upgrades, and new construction 
will (1) address critical damage and mission and safety requirements, 
(2) limit further deterioration and increase the useful life of the 
structures, and (3) upgrade infrastructure to meet requirements of new 
submarine technology. Construction will include use of impact and 
vibratory pile driving, including installation and removal of steel, 
concrete, composite, and timber piles. The specified activity is 
comprised of six distinct projects, four of which are comprised of 
multiple smaller projects.

Dates and Duration

    The specified activity may occur at any time during the five-year 
period of validity of the regulations. Planned dates of individual 
projects and project components are shown in Table 1, however, project 
dates may shift. In-water construction activities would occur during 
daylight hours, defined here as one hour post-sunrise to one hour prior 
to sunset.

Specified Geographical Region

    NSB Kings Bay is located in southeastern Georgia, approximately 
four miles inland (straight line distance) from the Atlantic Ocean, and 
approximately eight miles north of the Georgia-Florida border, along 
the western shore of Cumberland Sound (see Figure 2-1 in the Navy's 
application). NSB Kings Bay is an approximately 16,000-acre 
installation including the land areas and adjacent water areas along 
Kings Bay and Cumberland Sound between Marianna Creek to the north and 
Mill Creek to the south, and is restricted from general public access.
    This estuarine environment receives salt water input from ocean 
waters through tidal exchange, and fresh water input from rivers, 
tributaries, and stormwater outfalls. The large tidal range and strong 
currents result in tidally mixed waters that are refreshed on a daily 
basis. Please see section 2 of the Navy's application for more 
information.

Detailed Description of Activities

    The Navy plans to remove deteriorated timber, concrete, and steel 
piles and replace them with concrete, composite, and steel piles. New 
construction would involve installation of steel, concrete, and 
composite piles. Aspects of construction activities other than pile 
driving are not anticipated to have the potential to result in 
incidental take of marine mammals because they are either above water 
or do not produce levels of underwater sound with likely potential to 
result in marine mammal disturbance. Therefore, we do not discuss 
elements of construction activity other than pile driving. No 
concurrent pile driving would occur. Project specific pile totals are 
given in Table 1.
    A vibratory hammer will be used for all pile removal work. If use 
of the vibratory hammer is not feasible for pile installation (i.e., 
with steel piles), a Delmag Pile Hammer D62-22 or equivalent impact 
hammer will be used. The Delmag Pile Hammer D62-22 is a single acting 
diesel impact hammer with energy capacity of 76,899-153,799 foot-
pounds. The most effective and efficient method of pile installation 
available will be implemented for each project. The method fitting 
these criteria may vary based on specific project requirements and 
local conditions. In some areas of Kings Bay a limestone layer can be 
found relatively close to the substrate/water interface. This type of 
layer requires impact driving because vibratory installation will not 
drive the piles to a sufficient depth. Impact driving, while generally 
producing higher levels of sound, also minimizes the net amount of 
active driving time, thus reducing the amount of time during which 
marine mammals may be exposed to noise. Impact or vibratory pile 
driving could occur on any day, but would not occur simultaneously.

                                                              Table 1--Pile Driving Summary
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                       Project                                                       Total number                                Estimated      Total
                        start      Water    Pile size                         --------------------------                         number of   maximum in-
         ID            (fiscal     depth       (in)           Pile type                                   Installation method   strikes per   water work
                        year)       (ft)                                        Installed     Removed                               pile         days
--------------------------------------------------------------------------------------------------------------------------------------------------------
1A..................       2017         24         18  Concrete..............          148            0  Impact...............           60           30
                                                   24  Concrete..............           18            0  Impact...............           70            4
                                                   16  Timber................            0          159  n/a..................          n/a           31
1B..................       2017         15         16  Composite.............            2            0  Vibratory............          n/a            1
                                                   16  Timber................            0            2  n/a..................          n/a            1
2...................       2017         46         14  Steel (H).............           55            0  Impact...............           80            7
3A..................       2017         46         24  Steel.................            2            2  Impact...............           70            2
                           2022                    24  Concrete..............            3            3  Impact...............           75            2
                                                   24  Steel.................           10           10  Impact...............           70            7
3B..................       2021         46         14  Steel (H).............           99           99  Impact...............           60           15
3C..................       2018         46         24  Steel.................            6            0  Impact...............           70            1
                                                   30  Steel.................            0            6  n/a..................          n/a            1
3D..................       2017         46         24  Steel.................            6            0  Impact...............           70            1
                                                   30  Steel.................            0            6  n/a..................          n/a            1
3E..................       2018         46         24  Steel.................            6            0  Impact...............           70            1
                                                   30  Steel.................            0            6  n/a..................          n/a            1

[[Page 26363]]

 
3F..................       2021         46         30  Steel.................            8            8  Impact...............           70            4
3G..................       2022         30         14  Steel (H).............           77           77  Impact...............           60           16
4A..................       2020         35         24  Concrete..............          165            0  Impact...............          200           55
                                                   18  Concrete..............           50            0  Impact...............           80           17
                                                   24  Concrete..............            0          121  n/a..................          n/a            8
4B..................       2020         35         24  Steel.................           30           30  Impact...............          100            8
5...................       2017         46         18  Composite.............           18            0  Vibratory............          n/a            3
                                                   16  Timber................            0           18  n/a..................          n/a            3
6A..................       2022         46         24  Concrete..............            0          649  n/a..................          n/a           41
6B..................       2022         46         24  Concrete..............            0          121  n/a..................          n/a            6
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 2 shows total piles planned for installation (I) and removal 
(R) by pile type and size in total and per year. Note that no pile 
driving is planned for fiscal year (FY) 2019. Below we provide further 
detail specific to individual projects and project components. For 
additional detail, please see section 1 of the Navy's application.

                                                          Table 2--Pile Totals by Type and Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   FY2017            FY2018            FY2020            FY2021            FY2022            Totals
             Pile type                 Size  -----------------------------------------------------------------------------------------------------------
                                       (in)      I        R        I        R        I        R        I        R        I        R        I        R
--------------------------------------------------------------------------------------------------------------------------------------------------------
Composite..........................       16        2        0        0        0        0        0        0        0        0        0        2        0
                                          18       18        0        0        0        0        0        0        0        0        0       18        0
Concrete...........................       18      148        0        0        0       50        0        0        0        0        0      198        0
                                          24       18        0        0        0      165      121        0        0        3      773      186      894
Steel (H)..........................       14       55        0        0        0        0        0       99       99       77       77      231      176
Steel..............................       24        8        2       12        0       30       30        0        0       10       10       60       42
                                          30        0        6        0       12        0        0        8        8        0        0        8       26
Timber.............................       16        0      179        0        0        0        0        0        0        0        0        0      179
                                             -----------------------------------------------------------------------------------------------------------
    Totals.........................  .......      249      187       12       12      245      151      107      107       90      860      703    1,317
--------------------------------------------------------------------------------------------------------------------------------------------------------

Comments and Responses

    We published a notice of proposed rulemaking in the Federal 
Register on January 3, 2017 (82 FR 684). During the 30-day comment 
period, we received a letter from the Marine Mammal Commission 
(Commission) and comments from two private citizens. The comments and 
our responses are described below.
    Comment 1: The Commission recommends that we require the Navy to 
conduct source level measurements during vibratory driving of a 
representative number of 16-inch (in) composite piles in addition to 
the other pile types and methods proposed to be monitored.
    Response: We agree with the Commission's recommendation, and the 
Navy's monitoring plan has been revised accordingly.
    Comment 2: The Commission recommends that we require the Navy to 
conduct sound propagation measurements in addition to source level 
measurements during the various activities that would be monitored 
acoustically to refine the extent of the Level A and B harassment 
zones.
    Response: This was originally the intent of the acoustic monitoring 
plan, and the Navy's monitoring plan has been revised for clarity.
    Comment 3: The Commission recommends that we require the Navy to 
reallocate additional monitoring effort to the first two years of 
activities and ensure that monitoring occurs during a representative 
portion of the various pile sizes, types, and methods including during 
impact driving of steel pipe piles.
    Response: The Navy has clarified that impact and vibratory pile 
driving may occur interchangeably on any given day. Therefore, for 
example, although the description of Project 1A includes a maximum of 
31 days of vibratory removal and 30 days of impact installation, these 
days would not likely be independent, and the much smaller disturbance 
zone for impact driving would be contained within the zone associated 
with vibratory driving. We have revised the monitoring plan to include 
monitoring of the disturbance on a portion of days associated with 
Project 2; with this addition, all projects other than 1B and the FY17 
phase of Project 3A (each of which involves only two days of pile 
driving) incorporate some disturbance zone monitoring effort. We 
therefore believe that the monitoring plan achieves the goals expressed 
in the Commission's recommendation.
    Comment 4: A private citizen, while expressing support for the 
Navy's proposed waterfront construction activities, suggests that the 
length of the project may result in long-term avoidance and have 
permanent adverse effects on the Western North Atlantic South Carolina/
Georgia Coastal Stock of bottlenose dolphins. The commenter recommends 
that the opportunity be used to fill gaps in research in order to 
provide insight regarding the human impact on marine mammals.
    Response: We appreciate the commenter's concern. While the best 
available information does not lead us to believe that long-term 
avoidance or permanent adverse effects to any potentially affected 
stocks of bottlenose dolphin are reasonably anticipated outcomes of the 
specified activity, NMFS's implementing regulations (50 CFR 216.104) do 
require that applicants for incidental take authorization propose the 
suggested means of monitoring and reporting that will result in 
increased knowledge of the species, and of the level of taking or 
impacts on populations of marine mammals. Please

[[Page 26364]]

see ``Monitoring and Reporting,'' later in this document, for details 
of planned monitoring and reporting requirements.
    Comment 5: A private citizen states that protection of marine life 
is critical to maintaining balanced ecosystems and that mass stranding 
of marine life is undesirable.
    Response: We agree with the sentiments expressed by the commenter 
and issue this final rule in accordance with the requirements of the 
MMPA, which address the Congressional finding that marine mammal 
species and population stocks should not be permitted to diminish 
beyond the point at which they cease to be a significant functioning 
element in the ecosystem of which they are a part (16 U.S.C. 1361(2)). 
However, no mass stranding of marine life is anticipated to result from 
the specified activity, and no injury or mortality of marine mammals is 
anticipated or authorized.

Description of Marine Mammals in the Area of the Specified Activity

    Only one species under NMFS's jurisdiction is considered to have 
the potential to co-occur with Navy activities: The bottlenose dolphin. 
However, multiple stocks of bottlenose dolphin have the potential to be 
present. The offshore stock of bottlenose dolphins is considered 
extralimital to the project area and is not discussed further in this 
document.
    Table 3 lists all species and stocks with expected potential for 
occurrence in the specified geographical region where Navy plans to 
conduct the specified activity, and summarizes information related to 
the population or stock, including potential biological removal (PBR). 
PBR, defined by the MMPA as the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population, is considered in concert with known sources of 
ongoing anthropogenic mortality (as described in NMFS's SARs).

                                                          Table 3--Marine Mammals Potentially Present in the Vicinity of NSB Kings Bay
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                                                        ESA/MMPA status;
             Species                     Stock           strategic (Y/N)     Stock abundance  (CV, Nmin, most           PBR \3\            Annual  M/SI \4\      Relative occurrence  in Kings
                                                               \1\             recent  abundance survey) \2\                                                     Bay;  season of occurrence \5\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
                                                                                       Family Delphinidae
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin..............  Western North        D; Y                4,377 (0.43; 3,097; 2009)...........  31...................  1.2-1.6..............  Likely; year-round.
                                   Atlantic Coastal,
                                   South Carolina/
                                   Georgia.
                                  WNA Coastal,         D; Y                1,219 (0.67; 730; 2009).............  7....................  0.4..................  Rare; year-round.
                                   Northern Florida.
                                  WNA Coastal,         D; Y                9,173 (0.46; 6,326; 2009)...........  63...................  0-12.................  Rare; January-March.
                                   Southern Migratory.
                                  Southern Georgia     -; Y                194 (0.05; 185; 2009)...............  1.9..................  Unk..................  Likely; year-round.
                                   Estuarine System.
                                  Jacksonville         -; Y                Unknown.............................  Undetermined.........  1.2..................  Rare; year-round.
                                   Estuarine System.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the
  MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA
  within the foreseeable future.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be
  more recent surveys that have not yet been incorporated into the estimate.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that
  stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship
  strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a range.
\5\ The Navy considers ``rare'' to mean that there may be a few confirmed sightings or that the distribution of the stock is near enough to the area of interest that the species could occur
  there, and that overall the stock may occur but only infrequently or in small numbers. ``Likely'' is considered to mean that confirmed and regular sightings of the species occur year-round.
  Extralimital stocks are those that are considered unlikely to co-occur with the activity because the action area is outside the range of normal occurrence, but for which there may be some
  sighting or stranding records.

    We presented a detailed discussion of the status of these stocks 
and their occurrence in the action area in the notice of the proposed 
rulemaking (82 FR 684; January 3, 2017), and do not repeat the 
information here. Please see that document for more information. In 
summary, the southern Georgia estuarine system stock and the South 
Carolina/Georgia coastal stock are expected to be the two stocks most 
likely to be affected by the specified activity. Individual animals 
from the northern Florida and southern migratory (January to March 
only) coastal stocks and the Jacksonville estuarine system stock may 
also occur rarely.

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    We provided discussion of the potential effects of the specified 
activity on marine mammals and their habitat in our Federal Register 
notice of proposed rulemaking (January 3, 2017; 82 FR 684). Therefore, 
we do not reprint the information here but refer the reader to that 
document. That discussion included a summary and discussion of the ways 
that components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take'' section later in this preamble 
includes a quantitative analysis of the number of incidents of

[[Page 26365]]

take expected to occur incidental to this activity. The ``Negligible 
Impact Analysis'' section includes an analysis of how this specific 
activity will impact marine mammals, and considers the content of the 
discussion of potential effects to marine mammals and their habitat, 
the ``Estimated Take'' section, and the ``Mitigation'' section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals, and from that on 
the affected marine mammal populations or stocks.

Estimated Take

    Except with respect to certain activities not pertinent here, 
section 3(18) of the MMPA defines ``harassment'' as any act of pursuit, 
torment, or annoyance which (i) has the potential to injure a marine 
mammal or marine mammal stock in the wild (Level A harassment); or (ii) 
has the potential to disturb a marine mammal or marine mammal stock in 
the wild by causing disruption of behavioral patterns, including, but 
not limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).
    Anticipated takes would be by Level B harassment, as pile driving 
activity has the potential to result in disruption of behavioral 
patterns for individual marine mammals. Level A harassment by auditory 
injury is unlikely to occur as a result of this activity for bottlenose 
dolphins (i.e., mid-frequency hearing specialists) and, although it is 
unlikely that take by Level A harassment would occur even in the 
absence of the planned mitigation and monitoring measures, the measures 
are expected to further minimize such potential. The Navy has requested 
authorization for the incidental taking by Level B harassment of 
bottlenose dolphins in the vicinity of NSB Kings Bay that may result 
from pile driving during waterfront construction activities described 
previously in this document.

Sound Thresholds

    We provided discussion of relevant sound thresholds in our Federal 
Register notice of proposed rulemaking (January 3, 2017; 82 FR 684) and 
do not reprint the information here. Please see Table 4 for those 
criteria.

                   Table 4--Acoustic Exposure Criteria
------------------------------------------------------------------------
           Criterion                Definition           Threshold
------------------------------------------------------------------------
Level A harassment (mid-        Injury (onset      230 dB \1\ (peak
 frequency cetaceans).           PTS--any level     pressure) or 185 dB
                                 above that which   \2\ (cumulative
                                 is known to        sound exposure
                                 cause TTS).        level).
Level B harassment............  Behavioral         160 dB root mean
                                 disruption.        square (rms)
                                                    (impulse sources);
                                                    120 dB rms (non-
                                                    impulsive,
                                                    continuous sources).
------------------------------------------------------------------------
\1\ Referenced to 1 [mu]Pa; unweighted within generalized hearing range.
\2\ Referenced to 1 [mu]Pa\2\s; weighted according to appropriate
  auditory weighting function.

    Based on consideration of NMFS's 2016 ``Technical Guidance for 
Assessing the Effects of Anthropogenic Sound on Marine Mammal 
Hearing,'' potential injury zones are fully encompassed by Navy's 
planned shutdown zones. Predicted isopleth distances for auditory 
injury (i.e., Level A harassment) were calculated for all construction 
scenarios (e.g., combinations of pile types, hammer types, and assumed 
number of piles driven per day or driving duration per day). This 
information was used with NMFS's optional user spreadsheet, a tool 
developed to help applicants implement the new Technical Guidance. For 
vibratory driving, predicted zones ranged from less than 1 m to 3.6 
meters (m). For impact driving, predicted zone ranged from less than 1 
m to 38 m. All zones were smaller than the Navy's proposed minimum 
shutdown zone of 15 m, except for impact driving of 24-in steel piles 
associated with project 4B in FY20 (16.6 m) and impact driving of 30-in 
steel piles associated with project 3F in FY 2021 (38 m). Shutdown 
zones associated with these projects would be increased to 20 m and 40 
m, respectively, in order to encompass the predicted injury zones. In 
consideration of the small injury zones and the Navy's mitigation, we 
believe that injury will be avoided. We have considered the new 
guidance and believe that the likelihood of injury is adequately 
addressed in this analysis, and appropriate protective measures are in 
place in these regulations.

Zones of Influence

    Sound Propagation--Pile driving generates underwater noise that can 
potentially result in disturbance to marine mammals in the project 
area. Transmission loss (TL) is the decrease in acoustic intensity as 
an acoustic pressure wave propagates out from a source. TL parameters 
vary with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B * log10(R1/R2),

where,

R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement.

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6 dB reduction in sound level for each doubling of 
distance from the source (20*log(range)). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of 3 decibels (dB) in 
sound level for each doubling of distance from the source 
(10*log(range)). As is common practice in coastal waters, here we 
assume practical spreading loss (4.5 dB reduction in sound level for 
each doubling of distance) here. Practical spreading is a compromise 
that is often used under conditions where water increases with depth as 
the receiver moves away from the shoreline, resulting in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions.
    Sound Source Levels and Behavioral Zones--The intensity of pile 
driving sounds is greatly influenced by factors such as the type of 
piles, hammers, and the physical environment in which the activity 
takes place. However, there are no measurements available from the 
specific environment of NSB Kings Bay. Numerous studies have examined 
sound

[[Page 26366]]

pressure levels (SPLs) recorded from underwater pile driving projects 
in California and Washington, and the Navy has conducted a few studies 
on the east coast. In addition, the majority of studies are focused on 
steel pipe piles, with less data available for other pile types. In 
order to determine reasonable SPLs and their associated effects on 
marine mammals that are likely to result from pile driving at NSB Kings 
Bay, studies with similar properties to the specified activity were 
evaluated, and are displayed in Table 5. Where available, data from the 
east coast were prioritized due to the differences in bathymetry and 
sediment at west coast sites. For pile types for which data from the 
east coast were not available, averages of west coast data were used to 
approximate source levels. For fiberglass reinforced plastic composite 
piles, no measured data are available. The source level estimates for 
this type of pile were based on data from timber piles driven on the 
east coast of the U.S, assuming that this is the most similar pile 
material. In all cases, where data from the same pile size/type were 
not available, a more conservative proxy was used. Where appropriate, 
weighted project averages were considered. Values measured at distances 
greater than 10 m were normalized to 10 m before calculating averages. 
For full details of data considered, please see Appendix C of the 
Navy's application.

                                           Table 5--Summary of Proxy Measured Underwater Sound Pressure Levels
                                                                         [SPLs]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                 Proxy source levels (dB at 10 m)
                 Method                       Pile size and material                   Proxy             -----------------------------------------------
                                                                                                                rms             pk              SEL
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory..............................  16'' timber; 16-18'' composite.  12-16'' timber \1\............             161             n/a             n/a
Vibratory..............................  18-24'' concrete...............  24'' steel pipe 2-5...........             166             n/a             n/a
Vibratory..............................  14'' steel H...................  14'' steel H \6\..............             163             n/a             n/a
Vibratory..............................  24'' steel pipe................  24'' steel pipe 2-5...........             166             n/a             n/a
Vibratory..............................  30'' steel pipe................  30'' steel pipe 7-9...........             166             n/a             n/a
Impact.................................  18'' concrete..................  18'' concrete \4\.............             170             184             159
Impact.................................  24'' concrete..................  24'' concrete 1 6.............             174             184             165
Impact.................................  14'' steel H...................  14'' steel H \4\..............             178             196             168
Impact.................................  24'' steel pipe................  24'' steel pipe 4 10-11.......             190             206             179
Impact.................................  30'' steel pipe................  30'' steel pipe 4 8 10 12.....             193             209             188
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: \1\ Illingworth & Rodkin, 2015; \2\ Illingworth & Rodkin, 2010; \3\ Illingworth & Rodkin, 2012; \4\ Caltrans, 2012; \5\ Illingworth & Rodkin,
  2013b; \6\ Illingworth & Rodkin, 2013a; \7\ Laughlin, 2010a; \8\ Laughlin, 2010b; \9\ Laughlin, 2011; \10\ Laughlin, 2005a; \11\ Laughlin, 2005b; \12\
  MacGillivray and Racca, 2005.

    We consider the values presented in Table 5 to be representative of 
SPLs that may be produced by the specified activity. All calculated 
distances to and the total area encompassed by the marine mammal sound 
thresholds are provided in Table 6. Calculated radial distances to the 
160 dB threshold assume a field free of obstruction. However, the 
waters surrounding NSB Kings Bay do not represent open water conditions 
and the calculated zone-specific areas take landforms into 
consideration. Actual zones are depicted in Figures 6-1 through 6-26 of 
the Navy's application. Although calculated radial distances to 
threshold do not change, the actual zone sizes may vary depending on 
the specific project location.

                                       Table 6--Distances to Relevant Sound Thresholds and Areas of Ensonification
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Distance to threshold (m) and associated area of
                                                                                                              ensonification (km\2\)
                                                                                         ---------------------------------------------------------------
Project                                          Pile type..............................              160 dB
                                                                          120 dB
--------------------------------------------------------------------------------------------------------------------------------------------------------
1A.............................................  16'' timber............................             n/a             n/a           5,412            3.69
1A.............................................  18'' concrete..........................            46.4            0.01             n/a             n/a
1A.............................................  24'' concrete..........................            85.8            0.02             n/a             n/a
1B.............................................  16'' timber/composite..................             n/a             n/a           5,412            3.12
2..............................................  14'' steel H...........................             159            0.06             n/a             n/a
3A (FY17)......................................  24'' steel pipe........................           1,000            0.88          11,659            3.63
3A (FY22)......................................  24'' concrete..........................            85.8            0.02          11,659            3.63
3A (FY22)......................................  24'' steel pipe........................           1,000            0.88          11,659            3.63
3B.............................................  14'' steel H...........................             159            0.04           7,356            2.40
3C.............................................  24-30'' steel pipe.....................           1,000            0.75          11,659            3.32
3D.............................................  24-30'' steel pipe.....................           1,000            0.90          11,659            3.17
3E.............................................  24-30'' steel pipe.....................           1,000            0.88          11,659            3.72
3F.............................................  30'' steel pipe........................           1,585            1.35          11,659            3.49
3G.............................................  14'' steel H...........................             159            0.07           7,356            4.00
4A.............................................  18'' concrete..........................            46.4            0.02          11,659            7.51
4A.............................................  24'' concrete..........................            85.8            0.01          11,659            7.51
4B.............................................  24'' steel pipe........................           1,000            1.63          11,659            6.87
5..............................................  16'' timber/18'' composite.............             n/a             n/a           5,412           10.75
6A/6B..........................................  24'' concrete..........................             n/a             n/a          11,659            9.34
--------------------------------------------------------------------------------------------------------------------------------------------------------
Areas presented take into account attenuation and/or shadowing by land. Please see Figures 6-1 to 6-26 in the Navy's application.


[[Page 26367]]

Marine Mammal Density

    The Navy conducted marine mammal surveys at NSB Kings Bay during 
2006-2007 (McKee and Latusek, 2009). Transect lines were run in the 
waters around NSB Kings Bay during summer and fall 2006 and during 
winter and spring 2007. The survey area included estuarine waters 
extending from the mouth of the St. Marys River north through the 
Cumberland Sound to approximately eight nautical miles (nmi) inland 
along the Satilla River. The Crooked River and the Brickhill River, 
which flow into Cumberland Sound, were also part of the study area, 
though line transects were not possible in these locations, and census 
counts were substituted here. The geographic limits ranged from 
30[deg]40' N. to 31[deg]00' N. and inland limits to 81[deg]40' W. 
Nearshore Atlantic waters were not included in the surveys.
    Observations were made with 7x50 power binoculars and with the 
naked eye, scanning from 0-90[deg] relative to the vessel's line of 
travel. Sightings, radial distance and angle to animal, and number of 
individuals were recorded. For census count areas, the vessel was 
driven along the center line of the river and distance and angle to 
sightings were noted. Commercially available software (Distance 5.0) 
was used to analyze the collected data, including area surveyed, and 
calculate a seasonal density. Seasonal densities were combined to 
calculate an average annual density of 1.12 dolphins per square 
kilometer (km\2\).

Incidental Take Calculation

    The species density described above (1.12 animals/km\2\) was 
multiplied by the activity-specific ZOIs shown in Table 6 to determine 
the estimated daily exposures. The Navy then rounded these daily 
exposure estimates to the nearest whole number before multiplying by 
activity-specific pile driving days, shown in Table 1, to yield the 
exposure estimates shown in Table 7. The Navy has requested 
authorization for a total of 881 incidents of Level B harassment of 
bottlenose dolphins over the five-year period of validity of these 
regulations. Table 7 displays the total take estimate broken out by 
project and year. However, note that year assignments reflect only the 
projected project start years. Projects may continue into succeeding 
years, but neither exact start dates nor whether a project would in 
fact continue into the succeeding year are known at this time.

                                         Table 7--Incidental Take Totals
----------------------------------------------------------------------------------------------------------------
                              Year                                    Project         Impact         Vibratory
----------------------------------------------------------------------------------------------------------------
FY17............................................................              1A               0             124
                                                                              1B             n/a               6
                                                                               2               0             n/a
                                                                              3A               1               4
                                                                              3D               1               4
                                                                               5             n/a              72
                                                                                 -------------------------------
    FY17 Totals.................................................             n/a               2             210
                                                                                 -------------------------------
                                                                                                212
                                                                                 -------------------------------
FY18............................................................              3C               1               4
                                                                              3E               1               4
                                                                                 -------------------------------
    FY18 Totals.................................................             n/a               2               8
                                                                                 -------------------------------
                                                                                                10
                                                                 -----------------------------------------------
FY19............................................................                        n/a
                                                                 -----------------------------------------------
FY20............................................................              4A               0              64
                                                                              4B               8              32
                                                                                 -------------------------------
    FY20 Totals.................................................             n/a               8              96
                                                                                 -------------------------------
                                                                                                104
                                                                                 -------------------------------
FY21............................................................              3B               0              21
                                                                              3F               4               8
                                                                                 -------------------------------
    FY21 Totals.................................................             n/a               4              29
                                                                                 -------------------------------
                                                                                                33
                                                                                 -------------------------------
FY22............................................................              3A               4              16
                                                                              3G               0              32
                                                                              6A             n/a             410
                                                                              6B             n/a              60
                                                                                 -------------------------------
    FY22 Totals.................................................             n/a               4             518
                                                                                 -------------------------------
                                                                                                522
                                                                                 -------------------------------
        FY17-22 Totals..........................................             n/a              20             861
                                                                                 -------------------------------
                                                                                                881
----------------------------------------------------------------------------------------------------------------


[[Page 26368]]

Analyses and Determinations

Negligible Impact Analysis

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival. A negligible impact finding is based on the lack of likely 
adverse effects on annual rates of recruitment or survival (i.e., 
population-level effects). An estimate of the number of takes alone is 
not enough information on which to base an impact determination. In 
addition to considering estimates of the number of marine mammals that 
might be taken by mortality, serious injury, and Level A or Level B 
harassment, we consider other factors, such as the likely nature of any 
behavioral responses (e.g., intensity, duration), the context of any 
such responses (e.g., critical reproductive time or location, 
migration), as well as the number and nature of estimated Level A 
harassment takes (if any), and effects on habitat. We also assess the 
number, intensity, and context of estimated takes by evaluating this 
information relative to population status (i.e., the environmental 
baseline).
    Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into these 
analyses via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, sources of human-caused mortality).
    Pile driving activities associated with the wharf construction 
projects, as described previously, have the potential to disturb or 
displace marine mammals. Specifically, the specified activities may 
result in take, in the form of Level B harassment (behavioral 
disturbance) only, from underwater sounds generated from pile driving. 
Potential takes could occur if individual bottlenose dolphins are 
present in the ensonified zone when pile driving is happening.
    No serious injury or mortality would be expected even in the 
absence of the planned mitigation measures. No Level A harassment is 
anticipated given the nature of the activities and measures designed to 
minimize the possibility of injury. The potential for injury is small, 
and is expected to be essentially eliminated through implementation of 
the planned mitigation measures--soft start (for impact driving) and 
shutdown zones. Impact driving, as compared with vibratory driving, has 
source characteristics (short, sharp pulses with higher peak levels and 
much sharper rise time to reach those peaks) that are potentially 
injurious or more likely to produce severe behavioral reactions. Given 
sufficient notice through use of soft start, marine mammals are 
expected to move away from a sound source that is annoying prior to its 
becoming potentially injurious or resulting in more severe behavioral 
reactions. Environmental conditions in waters surrounding NSB Kings Bay 
are expected to generally be good, with calm sea states, albeit with 
high turbidity. Nevertheless, we expect conditions would allow a high 
marine mammal detection capability, enabling a high rate of success in 
implementation of shutdowns to avoid injury.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff, 
2006; HDR, Inc., 2012; Lerma, 2014). Most likely, individuals will 
simply move away from the sound source and be temporarily displaced 
from the areas of pile driving, although even this reaction has been 
observed primarily only in association with impact pile driving. The 
pile driving activities analyzed here are similar to, or less impactful 
than, numerous other construction activities conducted in San Francisco 
Bay and in the Puget Sound region, which have taken place with no known 
long-term adverse consequences from behavioral harassment.
    The Navy has conducted similar multi-year activities potentially 
affecting bottlenose dolphins in San Diego Bay and in the same general 
region at Mayport, Florida, that have similarly reported no apparently 
consequential behavioral reactions or long-term effects on bottlenose 
dolphin populations (Lerma, 2014; Navy, 2015). Repeated exposures of 
individuals to relatively low levels of sound outside of preferred 
habitat areas are unlikely to significantly disrupt critical behaviors. 
Thus, even repeated Level B harassment of some small subset of the 
overall stock is unlikely to result in any significant realized 
decrease in viability for the affected individuals, and thus would not 
result in any adverse impact to the stock as a whole. Level B 
harassment will be reduced to the level of least practicable adverse 
impact through use of mitigation measures described herein and, if 
sound produced by project activities is sufficiently disturbing, 
animals are likely to simply avoid the area while the activity is 
occurring. While vibratory driving associated with some project 
components may produce sound at distances of multiple kilometers from 
the pile driving site, thus intruding on higher-quality habitat, the 
project sites themselves and the majority of sound fields produced by 
the specified activities are within a heavily impacted, industrialized 
area. Therefore, we expect that animals annoyed by project sound would 
simply avoid the area and use more-preferred habitats.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality may reasonably be considered discountable; (2) the 
anticipated incidents of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) the absence of any significant 
habitat within the project area, including known areas or features of 
special significance for foraging or reproduction; and (4) the presumed 
efficacy of the planned mitigation measures in reducing the effects of 
the specified activity to the level of least practicable adverse 
impact. In addition, while some of the potentially affected stocks are 
considered depleted under the MMPA, it is unlikely that minor noise 
effects in a small, localized area would have any effect on the stocks' 
ability to recover. In combination, we believe that these factors, as 
well as the available body of evidence from other similar activities, 
demonstrate that the potential effects of the specified activities will 
have only minor, short-term effects on individuals. The specified 
activities are not expected to impact rates of recruitment or survival 
and will therefore not result in population-level impacts.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the planned monitoring and 
mitigation measures, we find that the total marine mammal take from the 
Navy's waterfront construction activities will have a negligible impact 
on the affected marine mammal species or stocks.

Small Numbers Analysis

    Please see Table 7 for information relating to this small numbers 
analysis; as described previously, although we provide exposure 
estimates broken out by year and project component, we do not have 
specific information about when each project would be concluded

[[Page 26369]]

or therefore how many takes may actually accrue in any given year 
during the five-year period of validity of these regulations. An 
average of 176 incidents of behavioral harassment of bottlenose 
dolphins is predicted to occur annually over the five-year effective 
period of these regulations; we have no information allowing us to 
parse the predicted incidents amongst the stocks of bottlenose dolphin 
that may occur in the project area. However, because they would be 
expected to occur only rarely and/or seasonally, we assume that only 
small numbers of individuals of the northern Florida coastal, southern 
migratory coastal, and Jacksonville estuarine system stocks would be 
potentially present and available to be taken as a result of the 
specified activities.
    The South Carolina/Georgia coastal and southern Georgia estuarine 
system (SGES) stocks are expected to potentially be present more 
regularly. For the South Carolina/Georgia coastal stock, the predicted 
annual average number of incidents of take to be authorized is 
considered small--approximately four percent--even if each estimated 
taking was of a new individual. This is an extremely unlikely scenario 
as, for bottlenose dolphins in estuarine and nearshore waters, there is 
likely to be some overlap in individuals present day-to-day.
    The total number of authorized takes for bottlenose dolphins, if 
assumed to accrue solely to unique individuals of the SGES stock, is 
higher relative to the total stock abundance, which is currently 
estimated at 194 individuals. As described previously, this estimate is 
the result of surveys covering only a portion of the stock range and is 
assumed to underestimate the stock abundance. Regardless, these numbers 
represent the estimated incidents of take, not the number of 
individuals taken. That is, it is highly likely that a relatively small 
subset of SGES bottlenose dolphins would be harassed by project 
activities. SGES bottlenose dolphins range from Cumberland Sound at the 
Georgia-Florida border north to the Altamaha Sound, Georgia, an area 
spanning approximately 70 linear km of coastline and including habitat 
consisting of complex inshore and estuarine waterways. SGES dolphins 
show strong site fidelity (Balmer et al., 2013), and it is likely that 
the majority of SGES dolphins would not occur within waters ensonified 
by project activities. In summary, SGES dolphins are known to exhibit 
strong site fidelity (i.e., individuals do not generally range 
throughout the recognized overall SGES stock range), and the specified 
activity will be stationary within a relatively enclosed industrial 
area not recognized as an area of any special significance that would 
serve to attract or aggregate dolphins. We therefore believe that the 
estimated numbers of take, were they to occur, likely represent 
repeated exposures of a much smaller number of bottlenose dolphins, and 
that these estimated incidents of take represent small numbers of 
bottlenose dolphins.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, we find that 
small numbers of marine mammals will be taken relative to the 
populations of the affected species or stocks.

Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to such activity, ``and other means of effecting the 
least practicable adverse impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for subsistence uses.'' NMFS's implementing regulations 
require applicants for incidental take authorizations to include 
information about the availability and feasibility (economic and 
technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    The mitigation strategies described below largely follow those 
required and successfully implemented under previous incidental take 
authorizations issued in association with similar construction 
activities. Measurements from similar pile driving events were coupled 
with practical spreading loss and other relevant information to 
estimate zones of influence (ZOI; see ``Estimated Take'' section); 
these ZOI values were used to develop mitigation measures for pile 
driving activities at NSB Kings Bay. Background discussion related to 
underwater sound concepts and terminology was provided in the section 
on ``Description of Sound Sources,'' in our Federal Register notice of 
proposed rulemaking (January 3, 2017; 82 FR 684, at 694-695). Practical 
spreading loss is discussed in further detail previously in this 
preamble in the section on ``Zones of Influence.'' The ZOIs effectively 
represent the mitigation zone that would be established around each 
pile to prevent Level A harassment to dolphins, while providing 
estimates of the areas within which Level B harassment might occur. In 
addition to the specific measures described later in this section, the 
Navy will conduct briefings for construction supervisors and crews, 
marine mammal monitoring team, and Navy staff prior to the start of all 
pile driving activity, and when new personnel join the work, in order 
to explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures. All relevant personnel 
will watch applicable sections of the Navy's Marine Species Awareness 
Training video. Relevant personnel will also follow NMFS's ``Southeast 
Region Marine Mammal and Sea Turtle Viewing Guidelines,'' which are 
described in Attachment 1 of Navy's Monitoring Plan.

Monitoring and Shutdown for Pile Driving

    The following measures will apply to the Navy's mitigation through 
shutdown and disturbance zones:
    Shutdown Zone--The purpose of a shutdown zone is to define an area 
within which shutdown of activity would occur upon sighting of a marine 
mammal (or in anticipation of an animal entering the defined area), 
thus preventing some undesirable outcome, such as auditory injury or 
behavioral disturbance of sensitive species (serious injury or death 
are unlikely outcomes even in the absence of mitigation measures). For 
all pile driving activities, the Navy will establish a minimum shutdown 
zone with radial distance of 15 m. This minimum zone is intended to 
prevent the already unlikely possibility of physical interaction with 
construction equipment and to establish a precautionary minimum zone 
with regard to acoustic effects.
    As described previously in the ``Estimated Take'' section, we used 
NMFS's user spreadsheet, an optional companion spreadsheet associated 
with the alternative implementation methodology provided in Appendix D 
of NMFS's acoustic guidance (NMFS, 2016), to calculate project, pile 
type, and pile driving methodology-specific zones within which auditory 
injury (i.e., Level A harassment) could occur. The user spreadsheet is 
publicly available online at www.nmfs.noaa.gov/pr/acoustics/guidelines.htm. In using the spreadsheet, we assumed practical 
spreading loss and used supplementary information provided by the Navy 
regarding assumed number of piles driven per day and number of pile 
strikes necessary to install a pile (for

[[Page 26370]]

impact pile driving) and daily duration of pile driving (for vibratory 
pile driving). Assumed source levels are provided in Table 5.
    In most cases, this minimum shutdown zone of 15 m is expected to 
contain the area in which auditory injury could occur. All predicted 
auditory injury zones are less than the minimum 15 m shutdown zone 
(radial distance range: 0.5-13.1 m), with the exception of impact 
driving of 30-in steel piles associated with Project 3F (radial 
distance of 38 m) and impact driving of 24-in steel piles associated 
with Project 4B (radial distance of 16.6 m). In all cases, predicted 
injury zones are calculated on the basis of cumulative sound exposure, 
as peak pressure source levels are below the injury threshold for mid-
frequency cetaceans. For these two scenarios we require shutdown zones 
of 40 m and 20 m radial distance, respectively.
    Injury zone predictions generated using the optional user 
spreadsheet are precautionary due to a number of simplifying 
assumptions. For example, the spreadsheet tool assumes that marine 
mammals remain stationary during the activity and does not account for 
potential recovery between intermittent sounds. In addition, the tool 
incorporates the acoustic guidance's weighting functions through use of 
a single-frequency weighting factor adjustment intended to represent 
the signal's 95 percent frequency contour percentile (i.e., upper 
frequency below which 95 percent of total cumulative energy is 
contained; Charif et al., 2010). This will typically result in higher 
predicted exposures for broadband sounds, since only one frequency is 
being considered, compared to exposures associated with the ability to 
fully incorporate the guidance's weighting functions.
    Disturbance Zone--Disturbance zones are the areas in which SPLs 
equal or exceed 160 and 120 dB root mean square (rms) (for impulsive 
and non-impulsive, continuous sound, respectively). Disturbance zones 
provide utility for monitoring conducted for mitigation purposes (i.e., 
shutdown zone monitoring) by establishing monitoring protocols for 
areas adjacent to the shutdown zones. Monitoring of disturbance zones 
enables observers to be aware of and communicate the presence of marine 
mammals in the project area but outside the shutdown zone, and thus 
prepare for potential shutdowns of activity. However, the primary 
purpose of disturbance zone monitoring is for documenting incidents of 
Level B harassment; disturbance zone monitoring is discussed in greater 
detail later (see ``Monitoring and Reporting''). Nominal radial 
distances for disturbance zones are shown in Table 6.
    In order to document observed incidents of harassment, monitors 
record all marine mammal observations, regardless of location. The 
observer's location and the location of the pile being driven are 
known, and the location of the animal may be estimated as a distance 
from the observer and then compared to the location from the pile. It 
may then be estimated whether the animal was exposed to sound levels 
constituting incidental harassment on the basis of predicted distances 
to relevant thresholds in post-processing of observational data, and a 
precise accounting of observed incidents of harassment created. This 
information may then be used to extrapolate observed takes to reach an 
approximate understanding of actual total takes, in cases where the 
entire zone was not monitored and/or all days of activity were not 
monitored.
    Monitoring Protocols--Monitoring would be conducted before, during, 
and after pile driving activities. In addition, observers will record 
all incidents of marine mammal occurrence, regardless of distance from 
activity, and monitors will document any behavioral reactions in 
concert with distance from piles being driven. Observations made 
outside the shutdown zone will not result in shutdown. That pile 
segment will be completed without cessation, unless the animal 
approaches or enters the shutdown zone, at which point all pile driving 
activities would be halted. Monitoring will take place from 15 minutes 
prior to initiation through 30 minutes post-completion of pile driving 
activities. Pile driving activities include the time to install or 
remove a single pile or series of piles, as long as the time elapsed 
between uses of the pile driving equipment is no more than thirty 
minutes. Observation of shutdown zones will always occur, but 
observation of the larger disturbance zones will occur on a subset of 
days associated with each specific project (see project-specific 
details provided in ``Monitoring and Reporting,'' later in this 
document). Please see the Monitoring Plan, developed by the Navy in 
agreement with NMFS, for full details of the monitoring protocols.
    The following additional measures apply to visual monitoring:
    (1) Monitoring will be conducted by designated observers, who will 
be placed at the best vantage point(s) practicable (as defined in the 
Monitoring Plan) to monitor for marine mammals and implement shutdown/
delay procedures when applicable by calling for the shutdown to the 
hammer operator. Observers would have no other construction-related 
tasks while conducting monitoring. Observers should have the following 
minimum qualifications:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
bottlenose dolphins, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to document observations 
including, but not limited to: The number and species of marine mammals 
observed; dates and times when in-water construction activities were 
conducted; dates and times when in-water construction activities were 
suspended to avoid potential incidental injury of marine mammals from 
construction noise within a defined shutdown zone; and marine mammal 
behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    (2) Prior to the start of pile driving activity, the shutdown zone 
will be monitored for 15 minutes to ensure that it is clear of marine 
mammals. Pile driving will only commence once observers have declared 
the shutdown zone clear of marine mammals. Animals will be allowed to 
remain in the shutdown zone (i.e., must leave of their own volition), 
and their behavior will be monitored and documented. The shutdown zone 
may only be declared clear, and pile driving started, when the entire 
shutdown zone is visible (i.e., when not obscured by dark, rain, fog, 
etc.). In addition, if such conditions should arise during impact pile 
driving that is already underway, the activity would be halted.
    (3) If a marine mammal approaches or enters the shutdown zone 
during the course of pile driving operations, activity will be halted 
and delayed until either the animal has voluntarily left and been 
visually confirmed beyond the shutdown zone or fifteen minutes have 
passed without re-detection of the animal. Monitoring will be conducted

[[Page 26371]]

throughout the time required to drive a pile and for thirty minutes 
following the conclusion of pile driving.

Soft Start

    The use of a soft start procedure is believed to provide additional 
protection to marine mammals by warning marine mammals or providing 
them with a chance to leave the area prior to the hammer operating at 
full capacity, and typically involves a requirement to initiate sound 
from the hammer at reduced energy followed by a waiting period. This 
procedure is repeated two additional times. It is difficult to specify 
the reduction in energy for any given hammer because of variation 
across drivers and, for impact hammers, the actual number of strikes at 
reduced energy will vary because operating the hammer at less than full 
power results in ``bouncing'' of the hammer as it strikes the pile, 
resulting in multiple ``strikes.'' The Navy will utilize soft start 
techniques for impact pile driving. We require an initial set of three 
strikes from the impact hammer at reduced energy, followed by a 30-
second waiting period, then 2 subsequent 3-strike sets. Soft start will 
be required at the beginning of each day's impact pile driving work and 
at any time following a cessation of impact pile driving of thirty 
minutes or longer; the requirement to implement soft start for impact 
driving is independent of whether vibratory driving has occurred within 
the prior 30 minutes.
    We have carefully evaluated the Navy's proposed mitigation measures 
and considered a range of other measures in the context of ensuring 
that we prescribed the means of effecting the least practicable adverse 
impact on the affected marine mammal species and stocks and their 
habitat. Our evaluation of potential measures included consideration of 
the following factors in relation to one another: (1) The manner in 
which, and the degree to which, the successful implementation of the 
measure is expected to minimize adverse impacts to marine mammals, (2) 
the proven or likely efficacy of the specific measure to minimize 
adverse impacts as planned; and (3) the practicability of the measure 
for applicant implementation.
    Any mitigation measure(s) we prescribe should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only).
    (3) A reduction in the number (total number or number at a 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only).
    (4) A reduction in the intensity of exposure to stimuli expected to 
result in incidental take (this goal may contribute to 1, above, or to 
reducing the severity of behavioral harassment only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying particular attention to the prey base, blockage or 
limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary disturbance of habitat 
during a biologically important time.
    (6) For monitoring directly related to mitigation, an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.

Based on our evaluation of these measures, we have determined that the 
planned mitigation measures provide the means of effecting the least 
practicable adverse impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

    In order to issue an incidental take authorization for an activity, 
section 101(a)(5)(A) of the MMPA states that NMFS must set forth 
requirements pertaining to the monitoring and reporting of such taking. 
The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate 
that requests for incidental take authorizations must include the 
suggested means of accomplishing the necessary monitoring and reporting 
that will result in increased knowledge of the species and of the level 
of taking or impacts on populations of marine mammals that are expected 
to be present in the proposed action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in action area (e.g., 
presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving, or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.
    The Navy provided a separate Marine Mammal Monitoring Plan, which 
is available online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Visual Marine Mammal Observations

    The Navy will collect sighting data and behavioral responses to 
construction for marine mammal species observed in the region of 
activity during the period of activity. All observers will be trained 
in marine mammal identification and behaviors and are required to have 
no other construction-related tasks while conducting monitoring. The 
Navy would monitor all shutdown zones at all times, and would monitor 
disturbance zones during a varying subset of total project days. 
Disturbance zone monitoring effort during the first two years of 
project activities is expected to provide verification during the early 
stages of the project regarding assumed numbers of bottlenose dolphins 
present in the area. If compliance monitoring results suggest that the 
actual number of incidental take events may differ significantly from 
the number originally authorized, the Navy would consult with NMFS. The 
Navy will conduct monitoring before, during, and after pile driving, 
with observers located at the best practicable vantage points. Based on 
our requirements, the Navy will implement the following procedures for 
pile driving:
     Marine mammal observers will be located at the best 
vantage point(s) in

[[Page 26372]]

order to properly see the entire shutdown zone and as much of the 
disturbance zone as possible.
     During all observation periods, observers will use 
binoculars and the naked eye to search continuously for marine mammals.
     If the shutdown zones are obscured by fog or poor lighting 
conditions, pile driving at that location will not be initiated until 
that zone is visible. Should such conditions arise while impact driving 
is underway, the activity would be halted.
     The shutdown zone around the pile will be monitored for 
the presence of marine mammals before, during, and after all pile 
driving activity, while disturbance zone monitoring will be implemented 
according to the schedule proposed here.
    Notional marine mammal observation locations are depicted in 
Figures 3-14 of the Navy's monitoring plan. Total days planned for each 
project are provided above in Table 1. Project-specific disturbance 
zone monitoring is described in the following list.
     Project 1A--A minimum of three observers will be deployed 
to monitor the disturbance zone on a minimum of ten days of vibratory 
pile driving.
     Project 1B--Only two total days of work are planned as 
part of Project 1B, and no disturbance zone monitoring will occur.
     Project 2--Only impact pile driving is proposed in 
association with Project 2; therefore, the disturbance zone would be 
visible during shutdown zone monitoring. However, a minimum of two 
observers will be deployed to monitor the zones on a minimum of three 
of the seven anticipated days of pile driving.
     Project 3A--This project is expected to occur in two 
phases, beginning in FY2017 and FY2022. During phase one, only two 
total days of work are planned and no disturbance zone monitoring will 
occur. During phase two, a minimum of three observers will be deployed 
to monitor the disturbance zone on a minimum of three days of vibratory 
pile driving.
     Project 3B--A minimum of three observers will be deployed 
to monitor the disturbance zone on a minimum of five days of vibratory 
pile driving.
     Projects 3C, 3D, and 3E--A minimum of two observers will 
be deployed to monitor the disturbance zone during all impact driving 
associated with these projects.
     Project 3F--A minimum of three observers will be deployed 
to monitor the disturbance zone on a minimum of two days of vibratory 
pile driving.
     Project 3G--A minimum of three observers will be deployed 
to monitor the disturbance zone on a minimum of four days of vibratory 
pile driving.
     Project 4A--A minimum of four observers will be deployed 
to monitor the disturbance zone on a minimum of eight days of vibratory 
pile driving.
     Project 4B--A minimum of four observers will be deployed 
to monitor the disturbance zone on a minimum of three days of vibratory 
pile driving.
     Project 5--A minimum of four observers will be deployed to 
monitor the disturbance zone on a minimum of three days of vibratory 
pile driving.
     Projects 6A and 6B--A minimum of five observers will be 
deployed to monitor the disturbance zone on a minimum of twelve days of 
vibratory pile driving.
    Individuals implementing the monitoring protocol will assess its 
effectiveness using an adaptive approach. Monitoring biologists will 
use their best professional judgment throughout implementation and seek 
improvements to these methods when deemed appropriate. Any 
modifications to the protocol will be coordinated between NMFS and the 
Navy.

Data Collection

    We require that observers use standardized data forms. Among other 
pieces of information, the Navy will record detailed information about 
any implementation of shutdowns, including the distance of animals to 
the pile and description of specific actions that ensued and resulting 
behavior of the animal, if any. We require that, at a minimum, the 
following information be collected on the sighting forms:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Description of implementation of mitigation measures 
(e.g., shutdown or delay).
     Locations of all marine mammal observations; and
     Other human activity in the area.

Acoustic Monitoring

    The Navy will implement a sound source level verification study 
during activities associated with specific project components of 
interest. Because data is relatively lacking for these pile types, data 
collection would be targeted towards impact and vibratory driving of 
concrete, timber, and composite piles. A sample scope of work for 
acoustic monitoring is provided as Attachment 3 of the Navy's 
monitoring plan. The exact specifications of the acoustic monitoring 
work would be finalized in consultation with Navy personnel, subject to 
constraints related to logistics and security requirements. Reporting 
of measured sound level signals will include the average, minimum, and 
maximum rms value and frequency spectra for each pile monitored. Peak 
and single-strike SEL values would also be reported for impact pile 
driving. Acoustic monitoring would be conducted in association with 
Project 1A (impact driving of 18-24'' concrete piles and vibratory 
removal of 16'' timber piles); Project 2 (impact driving of 14'' steel 
H piles); Project 4A (impact driving of 18-24'' concrete piles and 
vibratory removal of 24'' concrete piles); and Project 5 (vibratory 
removal of 18'' timber piles and vibratory installation of 18'' 
composite piles). Propagation loss measurements will also be part of 
the plan.

Marine Mammal Surveys

    Subject to funding availability, additional work would be performed 
to describe the spatial and temporal distributions of bottlenose 
dolphins and their densities in areas that may be affected by the 
specified activities. Surveys would be performed as soon as 
practicable.

Reporting

    A draft report will be submitted to NMFS within 90 days of the 
completion of the monitoring period for each project. The report will 
include marine mammal observations pre-activity, during-activity, and 
post-activity during pile driving days, and will also provide 
descriptions of any behavioral responses to construction activities by 
marine mammals, a complete description of all mitigation shutdowns and 
the results of those actions, and an extrapolated total take estimate 
based on the number of marine mammals observed during the course of 
construction. A final report must be submitted within thirty days 
following resolution of comments on the draft report. The Navy will 
also submit a comprehensive summary report

[[Page 26373]]

following conclusion of the specified activities.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Navy waterfront construction activities contain an adaptive management 
component.
    The reporting requirements associated with this final rule are 
designed to provide NMFS with monitoring data from the previous year to 
allow consideration of whether any changes are appropriate. The use of 
adaptive management allows NMFS to consider new information from 
different sources to determine (with input from the Navy regarding 
practicability) on an annual or biennial basis if mitigation or 
monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects on marine mammals and if the measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOAs.

Changes to the Proposed Regulations

    In response to public comment, and as a result of clarifying 
discussions with the Navy, we made certain changes to the proposed 
regulations as described here. These changes are considered minor and 
do not affect any of our preliminary determinations.

Monitoring

    We have added a requirement to conduct disturbance zone monitoring 
for Project 2, and have clarified that disturbance zone monitoring for 
Projects 3C-E would occur within the estimated 1,000-m disturbance zone 
associated with impact pile driving. We have also clarified that 
required acoustic monitoring will include measurements of propagation 
loss in addition to measurements of sound source levels. Finally, in 
order to accomplish acoustic monitoring of composite piles we have 
substituted Project 5 for Projects 6A-B in the acoustic monitoring 
plan.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by these actions. Therefore, we have determined that the total taking 
of affected species or stocks would not have an unmitigable adverse 
impact on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    No marine mammal species listed under the ESA are expected to be 
affected by these activities. Therefore, we have determined that 
section 7 consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    In our Federal Register notice of proposed rulemaking (January 3, 
2017; 82 FR 684), we stated our intent to independently evaluate the 
Navy's draft EA and determine whether or not to adopt it. Since 
publication of the proposed rule, NOAA has completed revisions to 
NOAA's procedures for implementing NEPA and related authorities, as 
contained in the Companion Manual to NOAA Administrative Order (NAO) 
216-6A (Companion Manual). The Companion Manual includes NOAA's revised 
categorical exclusions (CE) and related extraordinary circumstances.
    In accordance with the Companion Manual and NAO 216-6A, we have 
determined that issuance of this final rule qualifies to be 
categorically excluded from further NEPA review. Issuance of this final 
rule is consistent with categories of activities identified in CE B4 of 
the Companion Manual and we have not identified any extraordinary 
circumstances listed in Chapter 4 of the Companion Manual that would 
preclude application of this CE. NMFS has prepared a CE memorandum for 
the record.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this action will not 
have a significant economic impact on a substantial number of small 
entities. Navy is the sole entity that would be subject to the 
requirements of these regulations, and the U.S. Navy is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. No comments were received regarding this 
certification. As a result, a regulatory flexibility analysis is not 
required and none has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. However, this rule does 
not contain a collection-of-information requirement subject to the 
provisions of the PRA because the applicant is a Federal agency.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: June 2, 2017.
Samuel D. Rauch, III,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For reasons set forth in the preamble, NMFS amends 50 CFR part 217 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

Subpart Y--[Reserved]

0
2. Add reserved subpart Y.

0
3. Add subpart Z to read as follows:

Subpart Z--Taking Marine Mammals Incidental to Navy Waterfront 
Construction Activities at Naval Submarine Base Kings Bay

Sec.
217.250 Specified activity and specified geographical region.
217.251 Effective dates.
217.252 Permissible methods of taking.
217.253 Prohibitions.
217.254 Mitigation requirements.
217.255 Requirements for monitoring and reporting.
217.256 Letters of Authorization.
217.257 Renewals and modifications of Letters of Authorization.
217.258 [Reserved]
217.259 [Reserved]

[[Page 26374]]

Sec.  217.250  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy (Navy), 
and those persons it authorizes or funds to conduct activities on its 
behalf, for the taking of marine mammals that occurs in the area 
outlined in paragraph (b) of this section and that occurs incidental to 
waterfront construction activities.
    (b) The taking of marine mammals by Navy may be authorized in a 
Letter of Authorization (LOA) only if it occurs within waters adjacent 
to Naval Submarine Base Kings Bay and Crab Island.


Sec.  217.251  Effective dates.

    Regulations in this subpart are effective from July 12, 2017, 
through July 11, 2022.


Sec.  217.252  Permissible methods of taking.

    Under LOAs issued pursuant to Sec.  216.106 of this chapter and 
Sec.  217.256, the Holder of the LOA (hereinafter ``Navy'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.250(b) by Level B harassment associated 
with waterfront construction activities, provided the activity is in 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.


Sec.  217.253  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.250 and 
authorized by a LOA issued under Sec.  216.106 of this chapter and 
Sec.  217.256, no person in connection with the activities described in 
Sec.  217.250 may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.256;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  217.254  Mitigation requirements.

    When conducting the activities identified in Sec.  217.250, the 
mitigation measures contained in any LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.256 must be implemented. These mitigation 
measures shall include but are not limited to:
    (a) General conditions:
    (1) A copy of any issued LOA must be in the possession of the Navy, 
its designees, and work crew personnel operating under the authority of 
the issued LOA.
    (2) The Navy shall conduct briefings for construction supervisors 
and crews, marine mammal monitoring team, acoustic monitoring team, and 
Navy staff prior to the start of the first pile driving activity 
conducted pursuant to this chapter, and when new personnel join the 
work, in order to explain responsibilities, communication procedures, 
marine mammal monitoring protocol, and operational procedures.
    (b) Except for pile driving covered under paragraphs (c) and (d) of 
this section, for all pile driving activity, the Navy shall implement a 
minimum shutdown zone of 15 m radius around the pile. If a marine 
mammal comes within or approaches the shutdown zone, such operations 
shall cease.
    (c) For impact pile driving associated with Project 3F (Warping 
Wharf with Capstan), the Navy shall implement a minimum shutdown zone 
of 40 m radius around the pile. If a marine mammal comes within or 
approaches the shutdown zone, such operations shall cease.
    (d) For impact pile driving associated with Project 4B (Small Craft 
Berth Site VI), the Navy shall implement a minimum shutdown zone of 20 
m radius around the pile. If a marine mammal comes within or approaches 
the shutdown zone, such operations shall cease.
    (e) The Navy shall deploy marine mammal observers as indicated in 
the final Marine Mammal Monitoring Plan and as described in Sec.  
217.255 of this chapter.
    (1) For all pile driving activities, a minimum of one observer 
shall be stationed at the active pile driving rig or within reasonable 
proximity of the rig in order to monitor the shutdown zone.
    (2) Monitoring shall take place from 15 minutes prior to initiation 
of pile driving activity through 30 minutes post-completion of pile 
driving activity. Pre-activity monitoring shall be conducted for 15 
minutes to ensure that the shutdown zone is clear of marine mammals, 
and pile driving may commence when observers have declared the shutdown 
zone clear of marine mammals. In the event of a delay or shutdown of 
activity resulting from marine mammals in the shutdown zone, animals 
shall be allowed to remain in the shutdown zone (i.e., must leave of 
their own volition) and their behavior shall be monitored and 
documented. Monitoring shall occur throughout the time required to 
drive a pile. The entire shutdown zone must be visible before it can be 
deemed clear of marine mammals.
    (3) If a marine mammal approaches or enters the shutdown zone, all 
pile driving activities at that location shall be halted. If pile 
driving is halted or delayed due to the presence of a marine mammal, 
the activity may not commence or resume until either the animal has 
voluntarily left and been visually confirmed beyond the shutdown zone 
or fifteen minutes have passed without re-detection of the animal.
    (4) Monitoring shall be conducted by trained observers, who shall 
have no other assigned tasks during monitoring periods. Trained 
observers shall be placed from the best vantage point(s) practicable to 
monitor for marine mammals and implement shutdown or delay procedures 
when applicable through communication with the equipment operator.
    (f) The Navy shall use soft start techniques for impact pile 
driving. Soft start for impact drivers requires contractors to provide 
an initial set of strikes at reduced energy, followed by a thirty-
second waiting period, then two subsequent reduced energy strike sets. 
Soft start shall be implemented at the start of each day's impact pile 
driving and at any time following cessation of impact pile driving for 
a period of thirty minutes or longer.
    (g) Pile driving shall only be conducted during daylight hours.


Sec.  217.255  Requirements for monitoring and reporting.

    (a) Trained observers shall complete applicable portions of the 
Navy's Marine Species Awareness Training, as well as a general 
environmental awareness briefing conducted by Navy staff. At minimum, 
training shall include identification of bottlenose dolphins and 
relevant mitigation and monitoring requirements. All observers shall 
have no other construction-related tasks while conducting monitoring.
    (b) For shutdown zone monitoring, the Navy shall report on 
implementation of shutdown or delay procedures, including whether the 
procedures were not implemented and why (when relevant).
    (c) The Navy shall deploy additional observers to monitor 
disturbance zones according to the minimum requirements defined in this 
chapter. These observers shall collect sighting data and behavioral 
responses to pile driving for

[[Page 26375]]

marine mammal species observed in the region of activity during the 
period of activity, and shall communicate with the shutdown zone 
observer as appropriate with regard to the presence of marine mammals. 
All observers shall be trained in identification and reporting of 
marine mammal behaviors.
    (1) During Project 1A (Tug Pier), Navy shall deploy a minimum of 
three additional marine mammal monitoring observers on a minimum of ten 
days of vibratory pile driving activity.
    (2) During Project 2 (UMC Layberth (P-661)), Navy shall deploy a 
minimum of two additional marine mammal monitoring observers on a 
minimum of three days of impact pile driving activity.
    (3) During the fiscal year 2022 phase of Project 3A (Explosives 
Handling Wharf #2), Navy shall deploy a minimum of three additional 
marine mammal monitoring observers on a minimum of three days of 
vibratory pile driving activity.
    (4) During Project 3B ((Dry Dock) Interface Wharf), Navy shall 
deploy a minimum of three additional marine mammal monitoring observers 
on a minimum of five days of vibratory pile driving activity.
    (5) During Projects 3C, 3D, and 3E (Refit Wharves #1-3), Navy shall 
deploy a minimum of two additional marine mammal monitoring observers 
on all days of pile driving activity.
    (6) During Project 3F (Warping Wharf with Capstan), Navy shall 
deploy a minimum of three additional marine mammal monitoring observers 
on a minimum of two days of vibratory pile driving activity.
    (7) During Project 3G (Tug Pier), Navy shall deploy a minimum of 
three additional marine mammal monitoring observers on a minimum of 
four days of vibratory pile driving activity.
    (8) During Project 4A (Transit Protection System (TPS) Pier), Navy 
shall deploy a minimum of four additional marine mammal monitoring 
observers on a minimum of eight days of vibratory pile driving 
activity.
    (9) During Project 4B (Small Craft Berth Site VI), Navy shall 
deploy a minimum of four additional marine mammal monitoring observers 
on a minimum of three days of vibratory pile driving activity.
    (10) During Project 5 (Magnetic Silencing Facility Repairs), Navy 
shall deploy a minimum of four additional marine mammal monitoring 
observers on a minimum of three days of vibratory pile driving 
activity.
    (11) During Projects 6A (Demolition of TPS Pier) and 6B (Demolition 
of North Trestle), Navy shall deploy a minimum of five additional 
marine mammal monitoring observers on a minimum of twelve days of 
vibratory pile driving activity.
    (d) The Navy shall conduct acoustic data collection (sound source 
verification and propagation loss), in accordance with NMFS's 
guidelines, in conjunction with Project 1A (Tug Pier), Project 2 
(Unspecified Minor Construction Layberth Fender Pile Modification), 
Project 4A (TPS Pier), and Project 5 (Magnetic Silencing Facility).
    (e) Reporting:
    (1) Annual reporting:
    (i) Navy shall submit an annual summary report to NMFS not later 
than ninety days following the end of in-water work for each project. 
Navy shall provide a final report within thirty days following 
resolution of comments on the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Date and time that monitored activity begins or ends;
    (B) Construction activities occurring during each observation 
period;
    (C) Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
    (D) Water conditions (e.g., sea state, tide state);
    (E) Species, numbers, and, if possible, sex and age class of marine 
mammals;
    (F) Description of any observable marine mammal behavior patterns, 
including bearing and direction of travel and distance from pile 
driving activity;
    (G) Distance from pile driving activities to marine mammals and 
distance from the marine mammals to the observation point;
    (H) Description of implementation of mitigation measures (e.g., 
shutdown or delay);
    (I) Locations of all marine mammal observations; and
    (J) Other human activity in the area.
    (2) Navy shall submit a comprehensive summary report to NMFS no 
later than 90 days following the conclusion of marine mammal monitoring 
efforts described in this chapter.
    (3) Navy shall submit acoustic monitoring reports as necessary 
pursuant to Sec.  217.255(d).
    (f) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the activity defined in Sec.  
217.250 clearly causes the take of a marine mammal in a prohibited 
manner, Navy shall immediately cease such activity and report the 
incident to the Office of Protected Resources (OPR), NMFS, and to the 
Southeast Regional Stranding Coordinator, NMFS. Activities shall not 
resume until NMFS is able to review the circumstances of the prohibited 
take. NMFS will work with Navy to determine what measures are necessary 
to minimize the likelihood of further prohibited take and ensure MMPA 
compliance. Navy may not resume their activities until notified by 
NMFS. The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Fate of the animal(s); and
    (vii) Photographs or video footage of the animal(s). Photographs 
may be taken once the animal has been moved from the waterfront area.
    (2) In the event that Navy discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of decomposition), Navy shall immediately report the incident to OPR 
and the Southeast Regional Stranding Coordinator, NMFS. The report must 
include the information identified in paragraph (f)(1) of this section. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with Navy to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    (3) In the event that Navy discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with 
or related to the activities defined in Sec.  217.250 (e.g., previously 
wounded animal, carcass with moderate to advanced decomposition, 
scavenger damage), Navy shall report the incident to OPR and the 
Southeast Regional Stranding Coordinator, NMFS, within 24 hours of the 
discovery. Navy shall provide photographs or video footage or other 
documentation of the stranded animal sighting to NMFS. Photographs may 
be taken once the animal has been moved from the waterfront area.


Sec.  217.256  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, Navy must apply for and obtain a LOA.
    (b) A LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.

[[Page 26376]]

    (c) If a LOA expires prior to the expiration date of these 
regulations, Navy may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by a LOA, Navy must apply 
for and obtain a modification of the LOA as described in Sec.  217.257.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of a LOA shall be published in the 
Federal Register within thirty days of a determination.


Sec.  217.257   Renewals and modifications of Letters of Authorization.

    (a) A LOA issued under Sec.  216.106 of this chapter and Sec.  
217.256 for the activity identified in Sec.  217.250 shall be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For a LOA modification or renewal requests by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or that result in no more than a 
minor change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) A LOA issued under Sec.  216.106 of this chapter and Sec.  
217.256 for the activity identified in Sec.  217.250 may be modified by 
NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with Navy regarding the practicability of the modifications) 
if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of the mitigation and monitoring set forth in 
the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in a LOA:
    (A) Results from Navy's monitoring from previous years.
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in a LOA issued pursuant to Sec.  216.106 of 
this chapter and Sec.  217.256, a LOA may be modified without prior 
notice or opportunity for public comment. Notice would be published in 
the Federal Register within thirty days of the action.


Sec.  217.258   [Reserved]


Sec.  217.259  [Reserved]

[FR Doc. 2017-11805 Filed 6-6-17; 8:45 am]
 BILLING CODE 3510-22-P